Quashing of charge sheet by High Court or discharge by trial court – what is preferable after filing of charge sheet?

Question: A charge sheet has been filed in an FIR that was registered against me. I believe that it is a false case. What should I do? Should I file an application before the High Court under Section 482 of Cr.P.C. for quashing of the charge sheet?

Answer: After the submission of the charge sheet by police, filing of an application or petition before the High Court under S. 482 of the Criminal Procedure Code (Cr.P.C.) for quashing of the charge sheet is generally not advisable. Instead of that, it is better to try for discharge under Section 227 or Section 239 of Cr.P.C. (as the case may be, depending upon whether the case is triable by the Sessions Court or by a Magistrate), if it is felt that prima facie evidence is not available for prosecution on the basis of the merits of the case. If the trial court does not discharge the accused, it may then be challenged before the High Court under Section 482 Cr.P.C. in appropriate cases wherever it is permissible.

Filing a petition for quashing of charge sheet before the High Court under S. 482 Cr.P.C. may be preferable generally only when there is lack of competency or lack of jurisdiction of the trial court to try the case or when there is violation of some mandatory provision of law or when there is a specific bar on the taking of cognizance (for example, when the sanction for prosecution required under the law has not been taken), or when the charge sheet on the face of it (i.e., without going into details of the evidence) does not make out any offence. In other cases, the High Court may not, generally speaking, entertain a petition for quashing of charge sheet, and instead application for discharge before the trial court would be preferable.

In this regard, it is pertinent to mention that in the case of Dr. Sharda Prasad Sinha v. State of Bihar, (1977) 1 SCC 505 : AIR 1977 SC 1754 : 1977 Cri LJ 1146, the Supreme Court held as under:

“It is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence.”

“Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.”

“Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgement of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount.”

“Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint.”

“Be it noted that in the matter of exercise of the High Court’s inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of court. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial, and in the event, the High Court is desirous of putting a stop to the known procedure of law, the High Court must use a proper circumspection and as noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction.”

The above-mentioned Supreme Court decisions have been cited only by way of illustration. There are a large number of Supreme Court judgments on the exercise of powers by a High Court under Section 482 of the Cr.P.C., the gist of which has been mentioned above with regard to the question asked.

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. Email: info@tilakmarg.com

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